C.R.P.No.1952 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On : 24.04.2023

Delivered On: 30.06.2023

CORAM :

THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP

C.R.P.No.1952 of 2021

and

C.M.P.No.15110 of 2021

M.Ramesh

... Petitioner

Vs.

Kumar

... Respondent

PRAYER: Civil Revision Petition filed under Article 227 of Constitution of

India, to set aside the fair and final order dated 23.02.2021 made in I.A.No.

1 of 2020 in O.S.No.291 of 2020 on the file of the I Additional District

Judge, Coimbatore.

For Petitioner

: Mr.K.S.Karthik Raja

For Respondent

: Mr.S.Mukunth, Senior Counsel

for M/s.Sarvabauman Associates

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C.R.P.No.1952 of 2021

O R D E R

This Civil Revision Petition has been filed to set aside the fair and

final order dated 23.02.2021 made in I.A.No. 1 of 2020 in O.S.No.291 of

2020 on the file of the I Additional District Judge, Coimbatore.

2. The learned Counsel for the Revision Petitioner submit that the

Revision Petitioner is the Plaintiff in O.S.No.291 of 2020 on the file of the

learned I Additional District Judge, Coimbatore. The suit was filed for the

recovery of money. Along with the suit, he had filed I.A.No.1 of 2020 under

Order XXXVIII Rule-5 CPC for attachment of the property before the

judgment. In the petition, he had sought direction from the Court for

directing the Defendant/Respondent herein to furnish security for the suit

claim. In the same petition, he had stated that the Respondent is attempting

to alienate the property. After due enquiry, the learned I Additional District

Judge, Coimbatore by order dated 23.02.2021 dismissed the petition under

Order XXXVIII Rule-5 CPC in I.A.No.1 of 2020 in O.S.No.291 of 2020.

Aggrieved by the same, the Petitioner had approached this Court by filing

this Civil Revision Petition.

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C.R.P.No.1952 of 2021

3. It is the contention of the learned Counsel for the Revision

Petitioner that the learned Judge had dismissed the petition on the ground

that mere apprehension cannot be a ground to order attachment of property

before judgment. Thereby, dismissed the petition.

4. Mr. S.Mukunth, learned Senior Counsel appearing for the

Respondent would submit that the learned Trial Judge, after hearing both

parties, had placed reliance on the rulings cited by the learned Counsel for

the Respondent before the Trial Court and had dismissed the petition

observing that the mere apprehension that the Respondent/Defendant in the

suit attempts to encumber the property will not be a sufficient ground to

attach the property under Order XXXVIII Rule 5 CPC. The learned Senior

Counsel for the Respondent invited the attention of this Court to the

contents of the affidavit of the Plaintiff particularly in Paragraph No.4 in

the petition under Order XXXVIII Rule-5 CPC which is extracted

hereunder:-

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C.R.P.No.1952 of 2021

“4. I respectfully submit that the respondent

after receipt of the borrowal the respondent was very

lethargic in repaying the amount further their failed to

pay the interest as accepted. I respectfully submit that

he never turned to settle the outstanding at any point of

time. I submit that despite of the repeated demands by

me, the respondent failed to pay either the principal

amount or the accrued interest and the respondent

dodged me by some pretext or other. I submit that as on

16.11.2019, the respondent liable to pay a sum of

Rs.12,06,032/- being the principal amount along with

accrued interest”.

He also invited the attention of this Court to the contents of the

plaint particularly in Paragraph Nos. 2, 3 and 4 which are extracted

hereunder:-

“2. The Plaintiff further submits that the

defendant severaltimes borrowed small amounts like

50,000, 1,00,000 from the pla